Overlawyered: Chronicling The High Cost Of Our Legal System

Lawsuit: Knowledge of English, thinking not required for police

Quick multiple choice question: you call the police to report an emergency. Several officers respond. Who do you want supervising these officers?

  1. Smart police officers
  2. Police officers who speak English
  3. Police officers who can choose the right strategy from multiple possibilities
  4. All of the above

Tricked you! The question can’t be answered, because police supervisors shouldn’t have to answer multiple choice questions at all:

Five police officers from Lawrence and Methuen filed a federal civil rights lawsuit yesterday against the two cities and the state, contending that the state promotional exam discriminates against members of minority groups and has prevented their advancement within the ranks.

[…]

They say the multiple-choice format of the test, not the content of the questions, has blocked the rise of minorities, many of whom grew up speaking a different language. They want the state to devise a promotion system that would better reflect the skills used by a police supervisor, instead of how well they answer multiple-choice questions.

Welcome to the world of “disparate impact” litigation, where you don’t have to demonstrate any racism to charge racial discrimination. All you have to do is claim that some groups get promoted less frequently than others, and point out that the employer can’t really prove that his standards are necessary for the job. You know, like speaking English…

“I think this exam is really outdated,” said Cano, who scored a 78 in 2006. “For me, a person whose native language is Spanish, it’s a challenge. The questions are extremely complicated.”

…or dealing with “complicated” situations. The complaints don’t even have to make sense:

Kevin Sledge, 45, a patrolman in Lawrence for 14 years, said the test favors those who have more practice taking written exams. He took the exam last year for the first time, scoring a 76, but was passed over for others who scored higher.

“Some people are more practical and verbal, and those are important skills to be a police supervisor,” he said.

Whereas multiple choice questions don’t test either practical or verbal skills? Well, I guess if you see an emergency, you can just call a lawyer instead. (H/T John Rosenberg)

(Past Overlawyered fun with civil service exams: Mar. 2005, Apr. 2006, Jan 2007, Aug. 1, others.)

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BP explosion trial: the uses of voir dire

It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:

As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron’s logo on two large screens behind him.

Jim Galbraith, one of BP’s attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.

“We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong,” Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. …

Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn’t addictive when internal documents showed the companies knew the opposite was true.

“He’s still arguing his case,” Galbraith said.

Criss later told Coon he couldn’t show any more of these images. …

Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff’s attorneys who are not Brent Coon. (Juan A. Lozano, “BP Objects to Enron Comparisons”, AP/Forbes.com, Aug. 31).

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Postcard from Interlaken

Ted is on vacation in Europe, and sends the following:

So Slim and I went paragliding in Interlaken, Switzerland, today. As the van takes a group of five customers up to the top of the hill, the leader explains that we’ll each get to pick our tandem pilot.

I consulted my inner economist. “I want the one with the gray hair,” I said.

The pilot, Robi, gave me a form. “Regulations. Just like any air flight, we need to have the name and destination recorded. The liability is just like Continental Airlines,” handing me a ticket to sign. I read the back, expressly disclaiming that Air Transport laws applied, and stating maximum liability would be 72,500 francs. And since it’s Switzerland, the law of contract is probably respected, so that’s a real waiver. Fair enough — if I do not fly, so much as plummet, my ability to recover in civil court is perhaps the last thing on my mind. My pilot has plenty of economic incentive to land safely such that civil liability does not add much at the margin. And Coase teaches us that the limited liability permits the price to be as low as it is. I accept the benefit of the bargain, and assume good faith that the professional paraglider is just unfamiliar with the nature of the forms rather than trying to snow me.

The fact that I’m writing suggested that I survived. But I’m pretty confident that one is not supposed to bounce on the side of the hill during takeoff. (Slim, whose launch was after mine, reports that one of the other pilots crossed himself at the time.) And, hey, fun.

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Examiner series on trial lawyers

The Examiner, the newspaper chain with outlets in Washington, San Francisco and other cities, kicks off a five-part series on “Lawyers Gone Wild” with a package of articles including “Is There a Doctor in the House…Who Hasn’t Been Sued?“, “High-dollar settlements mark class action cases“, “Little relief: Litigation costs rising as firms face fewer suits“, and “Rogues gallery of class action attorneys“. I’m mentioned, as is this site, in the last of these articles, and my colleagues James Copland and the Manhattan Institute Center for Legal Policy are mentioned in the articles on class actions and litigation costs. The authors are Cheryl Chumley and Washington Examiner editorial page editor (and blogger) Mark Tapscott.

Four more installments are slated in the series. To quote the newspaper:

* Sept. 21 – Buying political power and friends in high places
* Sept. 28 – How they do it
* Oct. 5 – Hard times in super lawyer land
* Oct. 12 – Securities lawyers’ heads we win/tails you lose deal for corporate America

(cross-posted, with slight alterations, from Point of Law).

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Update: Great moments in lawyer discipline

Reader Eric Bainter writes:

The shenanigans of the NC prosecutor Mike Nifong got me to thinking about misbehaving attorneys in general; me being from the San Antonio area, this led me to wonder “whatever happened to those attorneys in the fraudulent suit against Chrysler?” (covered on Overlawyered May 23 and Jun. 26, 2000; Mar. 17 and Jul. 10, 2003; Aug. 1, 2006). During a fit of insomnia I decided to find out.

I started by checking the coverage on your site which most recently had noted, in the post from August of last year, that the Texas bar had still not yet gotten around to dealing with Andrew Toscano, one of the lawyers implicated in the affair. I searched the Texas Bar website, and found this was not quite true – Toscano got his discipline, such as it is, the day before your entry. I have copied and pasted beneath (after the jump) the entries for all three lawyers. Robert Kugle, the central figure in the fraud, got disbarred in 2003. The other two, Toscano and Robert L. Wilson III, only relatively recently got their punishments – two year suspensions – and if I understand the term “fully probated” correctly, their “suspensions” are “suspended” and they can still practice law. Each was fined $2500 in attorney’s fees and court costs – I assume this goes to the Texas Bar. No mention of the $1 million in sanctions from Judge Peeples.

I also found this article from Law.com that sheds some light on the “suspensions”.

I searched on the Internet for the current whereabouts of Toscano and Wilson. Andrew E. Toscano apparently now practices with a firm called “Gene Toscano, Inc.” I don’t know whether that is a relative of his, or Andrew’s middle name happens to be “Eugene” and he has decided to practice under that. No website for that firm that I can find.

Robert L. “Trey” Wilson III apparently practiced environmental law for a while after leaving Kugle’s firm (or maybe Kugle’s firm left him?) — the San Antonio bar featured him in its newsletter last December. I also found a now-defunct profile/bio page within the website of the attorney Louis Rosenberg, who does environmental law in San Antonio, but I do not notice any current mention of Wilson’s name on Rosenberg’s home page — he is not in Attorney Profiles, for example. If “Trey” worked there, I suspect he no longer does.

My temporary bout of insomnia seems over now. Best wishes,

Eric Bainter

[details of Texas bar discipline follow after the jump]

Read On…

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Update: “SCO Group files for bankruptcy protection”

“Three and a half years after launching a high-profile legal attack on Linux, The SCO Group has filed for Chapter 11 bankruptcy protection. …the company’s legal case was dealt a crushing blow in August, when the federal judge overseeing its case, Dale Kimball, concluded “that Novell is the owner of the Unix and UnixWare copyrights.” Presumably the law firm of Boies, Schiller & Flexner, which was pursuing SCO’s ambitious anti-Linux claims on contingency, has had to scale back its expectations of a payday (Stephen Shankland, CNet, Sept. 14). Earlier: Nov. 6, 2003, Nov. 13, 2004. More: Roger Parloff, Fortune “Legal Pad”.

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Blind item

Which nonprofit has put out a newsletter whose contents consist of more than a half-dozen news vignettes, all recently covered on Overlawyered, but provides no clue to readers that the stories might have been found via this site? And has done this more than once?

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Coyote’s environmental audit

You’d think it was for a nuclear waste plant, not a small pair of marinas on a Colorado lake (Aug. 16). If you’re going to store batteries in a shed, apparently you need to hang a sign saying “Batteries” on the shed (TJIC, Aug. 16). But then, “Colorado is one of the states I have to have a special license to sell eggs.”

P.S. And in the same vein, here’s Prof. Bainbridge being told by L.A. permits authorities that according to zoning records, his house does not exist (Sept. 12).

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O’Quinn told to pay clients $41 million

Because of interest and attorneys’ fees, the figure ordered by an arbitration panel is up from the $35 million reported in our earlier coverage (Apr. 15, Jun. 9, Jul. 19, Jul. 20, Jul. 25). The panel agreed that O’Quinn had overcharged former breast implant clients. (Debra Cassens Weiss, “Lawyer O’Quinn Ordered to Pay $41.4 M”, ABA Journal Online, Sept. 12).

Overlawyered has been covering this particular scandal for more than eight years (Aug. 4, 1999), sometimes out in front of the conventional press.

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